ICC unseals two new arrest warrants

Yesterday, the ICC unsealed a third arrest warrant in the Ivory Coast situation, against Mr. Charles Ble Goude. The first two arrest warrants to be unsealed in the Ivory Coast situation  are arrest warrants against former President, Laurent Gbagbo (presently in ICC costudy) and against Simone Gbagbo (for whom the Ivoirian government hasapparently  issued a challenge to admissability, asking to try Ms. Gbagbo in Cote d’Ivoire).

The arrest warrant against Charles Ble Goude was issued as early as 21 December 2011, only a few months after the opening of investigations, for ‘indirect co-perpetration’ under Article 25(3)(a) for his alleged role in instructing and training the patriotic youth, who allegedly took part in post-election violence in Cote d’Ivoire, against anyone suspected of supporting Alassane Ouattara.

The arrest warrant was unsealed yesterday (1 October 2013) after news coverage quoted the Minister of Justice, Gnenema Mamadou Coulibaly who apparently reported such an arrest warrant existed.

The arrest warrant was issued by Judges Sylvia Fernandez de Gurmendi, Elizabeth Odio Benito and former ICC Judge Adrian Fuldord. Interestingly, in paragraph 16 of the arrest warrant the Pre-Trial Chamber states:

“16. Although the Chamber is satisfied that this substantial test (as proposed by the Prosecution), is made out, it is likely that this issue {i.e. Mr Blé Goudé’s suggested liability as an “indirect co-perpetrator” under Article 25(3)(a) of the Statute) may well need to be revisited in due course with the parties and participants.”

Mr Ble Goude is presently in custody in Cote d’Ivoire.

The ICC unsealed an additional arrest warrant today in the Kenya case against William Samoei and Joshua Arap Sang. The arrest warrant is against Mr. Walter Osapiri Barasa, issued on 2 August 2013 by Single Judge Cuno Tarfusser, for allegedly corrupting and attempting to corruptly influence witnesses.

One may recall at this point that the Prosecutor, Ms. Fatou Bensouda requested to withdraw her case against Francis Kirimi Muthaura mainly because of serious witnesses issues.

A New Concept of Perpetrator Responsibility for International Crimes

International criminal law lacks a coherent account of individual responsibility. This failure is due to the inability of international tribunals to adequately capture the distinctive nature of individual responsibility for crimes that are collective by their very nature. Specifically, tribunals have struggled to understand the nature of the collective action or framework that makes these crimes possible, and for which liability can be attributed to intellectual authors and leaders. While the ad hoc tribunals have developed doctrines such as joint criminal enterprise, and extended forms of commission (in cases such as Seromba) to classify high-level accused as perpetrators, the theoretical foundations of these doctrines remain contested. The ICC, in contrast, has interpreted commission responsibility under Article 25(3)(a) in light of accepted modes of participation in German criminal law, in particular the concepts of co-perpetration and Organisationsherrschaft (organizational hegemony). However, with the recent Concurring Opinion of Judge Wyngaert in Ngudjolo, the status of indirect and co-perpetration at the ICC has been called into question. Having never been on a firm footing to begin with, a meaningful account of perpetration responsibility for international crimes seems more precarious than ever.

In my article, Individual Responsibility for Mass Atrocity: In Search of a Concept of Perpetration, I take up the challenge of constructing a theory of perpetration that reflects the concerns at the core of responsibility doctrines in highly theorized domestic criminal law systems, and which is simultaneously attuned to the unique features of international crimes. I do so by first identifying elements that distinguish international crimes from their domestic counterparts. I then examine doctrines of principal responsibility in English criminal law, German criminal law, and the jurisprudence of the ICC, to assess whether one can build a case for a more capacious concept of principalship for international crimes by drawing on these doctrines.

I choose to focus on English and German criminal law for several reasons. First, in the field of domestic criminal laws, these legal systems constitute two of the most sophisticated and influential systems representing the common law and civil law worlds respectively. Second, existing modes of responsibility in international criminal law have borrowed heavily from these systems in their jurisprudence. Third, my task is not to advocate the wholesale adoption of any doctrine in any particular legal system, but rather to restructure and combine divergent theoretical perspectives on perpetration responsibility in order to develop a suitable account of the criminal responsibility of senior and mid-level participants in mass atrocity. The attempt, therefore, is to engage fully with domestic criminal law principles while simultaneously capturing the unique features of international crimes.